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[2014] ZAGPPHC 290
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Dlamini v Absa Bank and Another (29741/14) [2014] ZAGPPHC 290 (24 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
Number: 29741/14
DATE:
24 APRIL 2014
In the matter
between:
SIPHO SANNIE
SAMUEL
DLAMINI
..........................................................
Applicant
And
ABSA BANK First
Respondent
SHERIFF OF THE
HIGH COURT
...............................................
Second
Respondent
(JOHANNESBURG
SOUTH)
REASONS FOR ORDER
MADE ON 15 APRIL 2014
BAM J
1. The applicant on
an urgent basis, on 15 April 2014, applied for an interim interdict,
pending the finalization of a rescission
application, restraining the
first respondent from selling in execution a certain property in
Mondeor, Johannesburg, on the same
day. The application was,
apparently electronically, served on the first respondent's attorneys
on 14 April at 22h35. When counsel
for the applicant, Mr Makhambeni,
appeared in chambers at 8h00,1 requested that the first respondent's
attorneys be phoned to establish
whether the application was opposed
or not. Shortly thereafter Mr Roos attended court, instructed on
behalf of the first respondent
and the matter was stood down to
enable the first respondent to file its opposing affidavit. I was
informed that the second respondent
would hold the sale in abeyance
until later that day.
2. Subsequently the
first respondent's opposing affidavit, deposed to by Mr Maduma, the
first respondent's attorney of record, was
handed up during argument.
After having heard argument by both counsel, in view of the fact that
the application was urgent, I
decided to make the applicable order
and to furnish my reasons later. My order entailed that the
application was refused with costs.
These are my
reasons:
3. The following
salient facts were recorded by the applicant in his founding
affidavit:
(i) In September
2005 the applicant and the respondent entered into a mortgage bond
agreement concerning the property in question;
(ii) The monthly
repayments were about R9000;
(iii) In 2006 the
applicant experienced financial constraints, causing him to pay
whatever he could afford towards the loan, ranging
from R3000 to
R9000 per month;
(iv) In 2010 and
2011, due to personal circumstances, the applicant's financial
situation worsened;
(v) For most part of
2012 the applicant could afford about R3000 per month towards the
down payments;
(vi) The Bank then
started to demand full payment;
(vii) In August 2012
the applicant's financial situation further worsened. He fell into
arrears with most of his creditors and he
was listed at a credit
bureau;
(viii) On 2 March
2013 summary judgment was granted against the applicant in the amount
of R1153 949.09, despite the applicant's
prior endeavours to have the
instalments reduced;
(ix) In May 2013 the
applicant secured new employment with a netto salary of R45 000 per
month;
(x) Since May 2013
the applicant managed to pay the monthly instalments but “missed"
the payments for August and September;
(xi) The instalments
for October and November were however deducted from the applicant's
bank account;
(xii) The present
situation is that capital amount is R1 321 852.87 and the arrears,
for 22 months, R313 303.75;
(xiii) The
applicant, apparently continuously, endeavoured to negotiate with
officers of ABSA. It appears that it was of no avail;
(xiv) On 22 November
2013 the applicant received notice that the property would be sold in
execution on 10 December 2013;
(xv) The applicant's
request that the sale in execution be withdrawn was met with ABSA's
response, on 5 December,that the full arrears
amount should be paid
beforehand.
4. In the first
respondent's opposing affidavit it was pointed out that on 7 April
2014, during a meeting, the applicant and his
attorneys were informed
that the sale in execution was set down for 15 April 2014 but that
ABSA would still be prepared to consider
reasonable settlement
proposals. It was further stated in the opposing affidavit that the
applicant bought a similar urgent application
on 9 December 2013. At
that stage ABSA indicated that they would not proceed with the
application on condition that the applicant
paid the amount in
arrears. That however did not happen.
5. From the
applicant's own version it was clear that he had no legal ground for
the application. The applicant based his application
on ABSA's
unreasonable attitude to sell the property in the circumstances, as
contended by Mr Makhambeni. In this regard the applicant,
in
paragraph 47 of his founding affidavit, stated that he would reduce
the arrear amount "quite handsomely in the next few
months to
come". With reference to this proposal by the applicant, it was
contended by Mr Roos that it could, in any event,
never be construed
as a reasonable settlement proposal and that the applicant has had
more than sufficient leniency granted by
ABSA in that regard.
6. It is indeed a
very serious matter to have a person's residence sold in execution.
However, it is a basic fact of life, as submitted
by Mr Roos, that if
a person cannot afford to pay his bond payments, and for that matter
the amount in arrears, he cannot afford
the specific housing with
consequences that speak for itself.
7. In view of the
fact that the applicant did not have a legal ground for his
application and was merely depending on sympathy of
the first
respondent, this Court had no authority in the circumstances to
compel the first respondent to be more reasonable towards
the
applicant's problem. Acportiingly the application stood to be
dismissed.
A J BAM
JUDGE OF THE HIGH
COURT
24 April 2014